Universities Say New Rules could Hurt U.S. Research

by Scott Shane
Published in the NYT on November 26, 2005

Washington, Nov. 25 - American universities are warning that rules proposed by the Defense Department and expected soon from the Commerce Department could hurt research by limiting the ability of foreign-born students and technicians to work with sensitive technology in laboratories.

One target of the proposed rules is believed to be China because more than 60,000 Chinese citizens are studying in the United States and Chinese intelligence officials are strongly seeking American technology for military use, experts in the field said.

Universities have submitted hundreds of comments criticizing the proposed rules, and they argue that tight restrictions on research by foreigners could backfire and actually hurt national security by hindering scientific progress.

“The impact on research could be very serious,” Barry Toiv, a spokesman for the Association of American Universities, said Friday. “The bottom line is that research that benefits both our economy and our national security just won’t happen.”

The rules govern the use of software, equipment or technical data that has military applications and therefore cannot be exported to certain countries without a license. A similar license, called a deemed export license, is require when the same sensitive technology is used by a foreign citizen in an American laboratory, on the ground that such a foreigner might return home and reproduce the technology there.

In practice, many foreign researchers are exempt from the licensing requirement if they are conducting basic research and their work is intended for publication, on the ground that the information they are producing will be shared widely to advance science.

The Commerce Department, whose inspector general last year recommended tighter regulations, is expected to propose the new rules by the end of this year.

The Defense Department proposed new regulations in July and is expected to produce final rules early next year, say lobbyists who follow the matter.

In a report last year, the Commerce Department’s inspector general, Johnnie E. Frazier, warned that existing regulations were not protecting secrets from potential spies in American laboratories. The report proposed tightening the rules, including using the country of birth of a foreign laboratory worker, not his current citizenship, to determine whether a license is needed.

The report said, for instance, that an Iranian-born Canadian citizen who held dual citizenship would be considered a Canadian under the current regulations and would therefore not be subject to the licensing requirement.

But Tobin L. Smith, a senior federal relations officer for the Association of American Universities, said a person’s country of birth often gave no clue to his allegiance. Moreover, the report’s recommendations would cost universities millions of dollars to inventory sensitive equipment, determine students’ birthplaces and study which foreigners were using which machines.

“Our faculties don’t want to say, ‘Before you can work on this equipment I need to know where you were born, ‘” Mr. Smith said.

The proposed Defense Department rules would require contractors, including universities getting research financing, to create separate security badges for foreign citizens and “segregated work areas” for research using export-controlled technology.

“That’s not really realistic in a campus environment,” where students and researchers must share laboratories, equipment and information, Mr. Smith said.

According to the Institute of International Education, 565,000 foreign students were enrolled last year at United States colleges and universities. The largest number of them, 80,466, came from India, with China in second place at 62,523.

Larry M. Wortzel, a former military intelligence officer who worked in the American Embassy in Beijing and at the Pentagon, said he believed that the rules should be tightened and that a foreign researcher’s birthplace should be considered.

“You have to recognize that Chinese intelligence does target ethnicity,” said Dr. Wortzel, a member of the U.S.-China Economic and Security Review Commission, which was created by Congress in 2000 to monitor the security implications of trade with China.

Noting that American jet engine technology is superior to China’s, he said: “I don’t see any reason why we should make it easier for China to build supersonic jets they could use to attack Taiwan, Japan or the U.S. They’re not an ally.”

At the same time, Dr. Wortzel said, “if this is done clumsily, it really will hurt university research”.